Moo Rules

About 60 percent of New Mexico’s dairies are polluting groundwater, according to the state Environment Department’s Groundwater Quality Bureau. Since nearly all New Mexicans depend on groundwater for at least some part of their drinking water supply and water is a diminishing resource in the state, it seems logical that preventing further pollution by dairies should be a priority.

That's not what appears to be happening now.

Although the state adopted new regulations for wastewater discharge for the dairy industry earlier this year, an environmental coalition says those regulations aren't in play. Furthermore, the dairy industry is insisting on further revisions, which the coalition says will allow the industry to continue operating under outdated methods that threaten the state's groundwater.

"My primary concern is the preservation of water quality," says Jon Block, a staff attorney at the New Mexico Environmental Law Center who is providing legal counsel for the Citizen Coalition, a collection of environmental groups.

On the other side of the debate is the Dairy Industry Group for a Clean Environment (DIGCE), an organization comprised of members from New Mexico's dairies. In 2009, the group gave testimony to the Environment Department and Water Quality Control Commission in a series of meetings. The body adopted a set of pollution regulations for dairies. But, now, after five years of negotiations to create what has become known as the "Dairy Rule," dairy industry representatives say they want to change the rules again.

"The proposal now on the table is going to gut the regulations," Block says, "and if that's done, it's a grave threat to New Mexico's groundwater."

The recent battle over dairy pollution began when the state passed a law in 2009, which required the Environment Department to come up with dairy-specific regulations for wastewater discharge. After more than a year of meetings, the first dairy rule was hammered out in December 2010. Newly elected Gov. Susana Martinez attempted to block its codification by preventing publication in the state Register, the last step for a bill to become law. She lost that round when the New Mexico Supreme Court ordered its publication. Then lawyers for DIGCE filed an appeal. At the end of 2011, an amended rule was proposed.

"All...parties stipulated in a document that they agreed with this new, revised dairy rule," says Michael Jensen of Amigos Bravos, an organization concerned with water conservation.

Dal Moellenberg, DIGCE's attorney, disagrees.

"There's a common misperception that DIGCE agreed with the Dairy Rule," Moellenberg writes in an email to SFR. "DIGCE did not agree to the Dairy Rule as a whole even with the amendments made in 2011."

He says DIGCE had made it clear that, despite signing the original and the amended agreement, they reserved the right to seek changes in the future.

The biggest contention between the two groups is about the way pollution is detected and prevented.

New Mexico's dairies are not small, mom-and-pop operations producing milk from a modest number of cows grazing on pastureland. Instead, the state's approximately 150 dairies have a total of about 350,000 cows, with an average herd size just over 2,000 cows. The animals live in what are called "concentrated animal feeding operations" and, as can be seen along Dairy Row, just east of Las Cruces where 11 dairies run along Interstate 10, there's no pastureland to be had.

Put that many cows in that concentrated a setting, and there's going to be a lot of waste—according to Jensen, 6.4 million gallons of manure every day. Much of it's channeled into large lagoons, which, unless properly constructed and lined, are often a source of pollution. And there has to be a way to detect that pollution.

Coalition members say the two most important requirements of the dairy rule—and what they believe all parties agreed to—are monitoring wells and synthetic liners for lagoons to prevent waste from leaking into groundwater.

Moellenberg says that monitoring wells may "be a conduit to contaminants to reach groundwater" and are expensive. He also says that the new regulations for wells are "excessive," requiring as many as 15 to 30 new wells per dairy.

Bill Olson, former Bureau Chief of the Environmental Department's Groundwater Quality Bureau, the state division responsible for inspections and for issuing discharge permits, has been involved with negotiations from the beginning. He thinks the industry group's stance is a little extreme. "They are not just proposing lesser numbers of monitoring wells," he says, explaining that he believes the DIGCE doesn't want to monitor possible contamination sources for early detection either.

Early detection is essential, Olson adds, given the number of dairies that are currently polluting groundwater. "They don't like monitoring wells because they detect contamination; that's my opinion," he adds.

The other major point of contention is the requirement that any new lagoon or a lagoon shown to be contaminating groundwater must have synthetic liners. DIGCE claims that synthetic liners are prone to tears and leaks and prefers clay-lined or compacted soil liners.

Although residents in Northern New Mexico may not be directly affected by contaminated groundwater in the southern part of the state, Jensen says they ought to care about whether the state enforces rules and whether rules are strong enough.

"If dairies...contribute to polluting groundwater, it means fewer...resources are going to be available without having to be treated first," he says. "It may not put a burden directly on people in Santa Fe or Albuquerque, (but) it's going to put a burden on the state. Somebody's going to have to pay for that stuff to be treated."

So it looks like after five years, the industry that makes up more than $1.2 billion of the state's $3 billion in total agriculture revenue will go back to square one. The Environment Department has agreed to hold more meetings with all the parties, and the coalition is ramping up to fight what it sees as another attempt to weaken current regulations.